tv [untitled] July 23, 2012 12:00pm-12:30pm PDT
>> thank you, ms. lopez. >> did you have any questions? new >> no. >> i have no questions. >> thank you for flying all the way out here. we appreciate you being here. the witness is excuse. we are going to take a short break for the court reporter, and we are going to do a little rearranging, so let's get back here >> ok, we are back in session. the next thing on the agenda is
the objections to be testimony. mr. kobb, we be making those? >> yes, and there is an overarching declaration, we see this as a tangential evidence as far as expert testimony. there is a specific objection. this is an undue consumption of time for everybody and a waste of resources, and if this i transcript of testimony is admitted, it will likely necessitate us offering at least one additional declaration from a witness that we had not thought that we would need as part of the record. so i understand the mayor has made numerous objections to other issues that we have
proposed because of the 352. it is a waste of time, and that is what we think about ms. flores' transcripts. >> any questions for mr. kopp about that? >> we don't see the unto consumption of time argument, because we submitted the transcripts and testimony within days of wendy witness declarations were submitted. we indicated that if we were submitting it in lieu of a declaration because it was already testimony that had been cross-examined on this issue, it is our position that it is too late now to say, oh, if you let it and we want to do some cross or have a rebuttal witness or
this opens a whole new door. if that was going to be the approach, it should have happened when we were making those decisions about how to schedule this hearing. that is our position on time. in terms of relevance of the issues, there are a couple of things. one is we are hearing a lot the last two days, this was an incident, but it was not real domestic violence. that is the defense we are hearing. the power and control wheel and the cycle of violence are the key indicators of whether or not an event fits within a pattern of domestic violence. in order to make that evaluation, you need information about the rest of the relationship and prior incidents and behavior patterns. so it is relevant for that purpose. the other thing is relevant to is is rebuttal evidence because the sheriff testified during his
testimony he had never physically harmed a woman before and that he had never bruised a woman before perry i believe i have the transcript somewhere, very near by, if you would like me to get it, but i think he might have also been asked if he had blocked a new front. if he had blocked anyone from leaving before. this testimony goes to all of those questions and the rebuttal evidence. >> mr. kopp, are you contesting there was an act of domestic violence that occurred on december 31, 2011? >> again, i think it did to it -- it depends on how you define the term. my position has been that what occurred does not need a label put on it. that what needs to be done here is you need to determine whether what he did, the act of grabbing his wife by the arm and leaving a bruise, is official misconduct
under the charter. in my opinion, i think there has been an on to focus on that term, domestic violence. >> are you unable to answer my question, yes or no? >> i answered as best as i can. i think it could be characterized as a domestic violence incidents, yes. but to me, that is immaterial to the question. >> i guess here is where i come down on this. in my view, i always understood that the domestic violence was not really being challenged, that it was an incident of domestic violence that occurred on the 31st. if it is not being challenged, to me, it is more prejudicial, and i don't see the point. if it is being challenged, ms.
kaiser has a point, if you are going to contest, that this was an act of domestic violence -- >> that it was not? >> that it was. if you're going to say that it was not, then they are entitled to support her claim with evidence. for claim is if there was domestic violence, that is official misconduct. i think her view also is if it was not domestic violence, then it is possible the commission could deem that to be some lesser degree of harm that would go into our determination. >> i can tell you that you will not hear from me this was not domestic violence. i will be focusing on the actual act itself. >> i understand. i welcome the views of my fellow commissioners. >> assuming the events happened at as it appears there but to be little dispute over what happened, you are saying whether
you call it domestic violence or anything else, it is not an act which rises to the level of official misconduct. >> absolutely. sorry i cannot answer your question that easily. >> any other questions for mr. kopp before we allow ms. kaiser a rebuttal? >> the man the facts are not disputed in terms of the incident in the car, but is there a dispute -- i suppose there is a dispute that i thought i was hearing in some way about whether there was pushing, pulling, other acts that took place on that same day tte. >> yeah, the allegation that something physical occurred inside of the house. that is in dispute. >> so if we just take the incident in the car, is it your
position that that was an act of domestic violence? i know that you don't put a label on it, but are you answering the question of whether you are contesting it or not? >> i am not going to argue that one specific incident was not an act of domestic violence because, to me, that is not the import question here. i wish i could help by saying this is our position, it is or is not, but i cannot because i just do not think the label is as significant. but i will not say that was not domestic violence, no, i am not going to say that. >> you would not stipulate that it was? >> no. >> any other questions for mr. kopp? ms. kaiser? >> i frankly think that even as mr. kopp would stipulate to the
term domestic violence, that would not make car of evidence irrelevant or cumulative because it is not really the term that controls, it is the act we are trying to show and the significance of the act. we believe that the act is a true act of domestic violence as placed within properly understood within the context that was supplied by nancy lyman and again by linnette peralta haynes. i have to agree with mr., bu ko that whether we leave that, neither of us really want that. we want you to understand and explore the significance of the act. to do that, we are permitted to submit this relevant evidence, and it is relevant. >> ok, but what fact in dispute are using miss florez's testimony to help prove?
>> we are trying to prove that this is not an insignificant -- >> ok, i don't want descriptive words. i want what fact, the actual piece of evidence, the thing that happened that will -- that this will help us decide. >> well, it will help you determine whether or not the act was more likely just a crab and indignant pull, or more likely in fact a grab and a push against the wall. if i cannot attach significance, i can point you to that factual dispute. i believe the dispute is very significant. that happens within context. we have various descriptions, one minimizing, and one -- >> any question for ms. kaiser?
ok, my view it is in light of the argument of counsel and in light of the fact that we are not a jury, though i think it is very close, i do not think it is particularly relevant in light of the representation of counsel. i would be inclined to let aid and for the purpose to the extent that it is relevant for helping us determine the severity of the combat on december -- of the conduct on december 31, 2011, and to the extent that it impeaches the sheriff's testimony. i did not recall that testimony specifically, but we will let you are rheostat. -- we will let you argue that. at least that is my view. i welcome the feel of my fellow
commissioners. >> i would be inclined to agree with you, mr. chairman, but i would caution the city attorney, when you file your proposed findings of fact, that that is the form they are going to be in. and you are relying on any portion of the flores testimony, you point specifically to that part so we can decide whether or not it is truly relevant. there are many portions -- i have read the testimony, and are many portions that i think have nothing to do with this case ought -- that have nothing to do with this case, and particularly the allegations there was some prior location with mirkarimi with ms. flores. i will tell you now that i do not think that should be in at
all. so, you cite need that for some reliance of finding of fact, you'll have a tough time convincing me. >> i would agree with both of you about letting in on a limited basis. the background is helpful relative to some of the pattern in miss lopez's testimony as well. >> ms. kaiser, we are ruling your way. >> ok. >> ok, so is there any dissenting view from the commissioners? ok. next item are the rebuttal exhibits from the sheriff. mr. kopp, the you have any
objections to them? >> if he could hold them up, because i did not have a hard copy? >> while he is pulling back up, we conferred during the break and i raised an issue of a portion of the declaration that had previously been excluded, and in light of miss lopez's testimony, i thought it was a prior inconsistent statement that could come in. mr. kopp had no objections. was wondering if that would be ok for the commission? >> sure, no objection, you can do it. >> it is paragraph nine, page three, line seven, beginning with, " eliana told me," ending >> any objections from the commissioners?
do we have that? ok, great, thank you. mr. kopp, have you found the exhibits? >> yes, i have. >> to you have any objection to 84 through 87? >> well, i think i had previously -- i just want to make sure the police report we discussed yesterday is not included. >> i think it is. >> i made in objection and i understood that to be sustained last night. >> i don't think that we addressed it. you have a different recollection? >> we discussed it, but we did not settle it. >> i think we got rid of the rebuttal testimony from backeec. which do you have an objection to? >> e85, the report, hearsay.
then 87, relevance. i am happy to expand upon that. >> ok, you may have to, but i don't think you will. ok, 84, 86 are in by stipulation? >> yes. >> okay, let's take 85 first. i think it is here say. if he could asked at the officer? >> it falls within the evidence code, 1280, it is for writings made by and within the scope of duty of a public employ about an act, condition, or event that fits the bill. this is an incident report about the act and event that occurred when they arrested sheriff mirkarimi and discussion.
under case law, this provision applies to incident reports, and they, and an administrative cases. i have a copy with a bunch of case cites, which i'm happy to supply the council and the commission. >> you could have submitted becker's instead of daniele's. we gave you the option. >> that is right. >> i do not see becker's report as anything new, i think it is cumulative. if we gave you the choice and you made your selection. plus, i have not heard of police reports been able to come in under these kinds of circumstances. i open it up to my fellow commissioners, but i would be inclined to sustain the objection. >> may i ask a question? >> course. >> can you indicate to us what is different, what we would
learn what different about the affidavit that we already have, the declaration that we already have from the other officer? >> no, it is correct. as the chairman mentioned, it was cumulative. that is true. it is consistent. when you have a credibility battle, it went to get in as many witness statements as you can, and that is why we are submitting it. the sheriff had testimony one way, we had testimony another way, but this is nothing new. >> the only thing that has sympathy for this in light of what you pointed out is the fact that we know there is an issue raised by the sheriff's testimony. but i defer to your greater knowledge of it. >> that may be a mistake. well, and the other views of this from the commissioners
about whether this should be admitted? ok, then 85 should be excluded. 87, 87 is a video of mr. wagner talking to a reporter. i have a very hard time seeing the relevance of that mr. keith. >> the reason is offered is because we argued, as i argued earlier tonight, there has been a pattern of basically mistreatment of our reporting what this by a law-enforcement official, and it is continuing. this is basically belittling and making fun of the reporting witness, the wood is to correct the reported a crime. the idea that he would have his lawyer is going to a news agency and basically making fun of her and sang she is not credible because she has written a comic book, i think that is not decent and it is not the right thing to do. i think that is why it is
relevant to the conduct charge. >> ok. any questions for mr. keith? mr. kopp, i will give you an opportunity to say something. >> last night, i said some things about miss madison's credibility to some reporters. i mean, the mayor is out there, permitted to make comments about his view of sheriff mirkarimi's actions, but we are still supposed to fight with one hand behind our back? i don't think so. this is not a playground. i think -- well, i don't want to say what i really think about this, but i don't think there is any way this is relevant to what you have. i think we are perfectly permitted to comment on the credibility of witnesses. >> i would be inclined to sustain the objection of 87.
any dissenting views from my fellow commissioners? ok, that will be excluded. ok, moving along to nancy lyman. unlike ms,. lopez's declaration, you were more successful narrowing your scope of the disputes. unless i misread it. >> no, but i did not mean to give you the impression we had to go through this paragraph by paragraph. we have an overarching objection because, repeating myself, we don't think a domestic violence expert is needed to understand the situation and make a decision. i am aware from past comments that some of you have made to that. i am probably in the minority here, but really, they agreed to
take out those paragraphs. i alluded to 185 to 190, inclusive. other than the overarching irrelevance objection, really the only outstanding point that is in dispute is the bullet point number 6, or vi. >> i took your objection seriously and went through this paragraph by paragraph to determine what i thought was relevant. should i have not done that? >> i'm very sorry, the relevance objection is not too specific individualize paragraphs, but to the expert opinion. >> i don't know what that means.
so, ms. kaiser, you are welcome to address them. >> ok. i really thought i was directed to the way it -- to do that. objections. i apologize, but i will be a little off the cuff, but i am happy to do this. i am just less prepared than i would have otherwise been. i apologize. ok, so 64 through 75 appears to be about the relationship
between prior domestic violence, better intervention programs, and about a prominent intervention program and the san francisco jail and the san francisco sheriff's department. this is offered as background information, at the same way the preceding paragraph to this point had been offered. there is a clear relationship, i think, and the experts believe between firearms and domestic violence. it seems to me this is relevant explanatory information out the significance about the issue, and it also seems to me the sheriff is participating now in
a batterers' intervention program and the principles and importance of those programs are relevant in terms of the fact that his conviction and his presence are the basis of one of the misconduct charges. so the fact he is under three years' probation and is mandated to attend this sort of court makes this information relevant to understanding the components of his sentence that we believe are important to determining whether or not it is consistent with professional standards. >> ok, i thought we had instructed you wall to give us lemon testimony that speaks to the credibility of ms. lopez, because that was the basis for it in the brown case, and that
is what i insisted we were going to rely on miss lemmon for. whether or not there is someone who is legally authorized to have weapons, the sheriff is allowed to have them. i am not sure that it will be helpful to whatever additional bodies have to review this record. i am cognizant this record is already huge. i and stand that we have erred on the side of letting things and, but i think we want to draw some lines and limit the record to what is truly relevant or at least related to relevant information. >> commissioner, does that mean that you are not intending on transmitting the full record? >> no, the whole thing will go, but i expect that whoever reviews this will rely in part
on what is determined as relevant. so -- >> i don't know. i assume that all of the decisions that you make will be taken as recommendations by the final decision makers out. does that mean that they will not read the rest? i really don't know. >> i am not really understanding your point, ms. kaiser. >> i am just curious about mending the page numbers when all of the pages are going in any way. i am trying to understand, to simply to address that concern and address it better and understand it. >> i think what we are trying to do here is figure out what the factual findings will be based on. that is the point of determining what is relevant, not just what record is going up to the board of supervisors. when we make factual findings, what are we relying on? we are only going to rely on the
evidence that has been submitted, right? >> yes. >> so that is the point of all of the meetings we have been having to determine the admissibility of evidence. >> we expect you to follow our rulings and when you submit your findings of fact that have citations, we expect that you'll be citing things that will be deemed to be relevant, whether or not another body reviews are worker agrees or disagrees with that viewpoint. >> absolutely, and instead of those concerns. i was just wondering about the desire to short for the sake of shortening. i completely understand the purpose of the rulings and the reasons why they are important to the findings of facts and conclusions. may i address your point about credibility in the brown case qwee? may i? >> do